Antitrust Enforcers’ First ‘Listening Forum’ on Merger Reform Highlights Persistent Concerns in Food and Agriculture Industry | Polsinelli

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In March of this year, the United States Department of Justice’s (“DOJ”) Antitrust Division and the Federal Trade Commission (“FTC”) jointly announced a series of “listening forums” that would help gather feedback from the world real participants in key industry sectors. segments on possible reforms to antitrust regulations relating to mergers and acquisitions.1 Co-led by DOJ Assistant Attorney General (“AAG”) Jonathan Kanter and FTC Chairwoman Lina Khan, the first of four announced forums was held on March 28, 2022 and focused on agriculture. In addition to AAG Kanter and President Khan, the program included eight panelists who provided input from the perspective of livestock, agriculture and petty retail.2

Recalling feedback received at the 2010 DOJ and USDA workshops on antitrust and agriculture, speakers and (virtual) attendees raised concerns familiar to law enforcement officials, including but not limited to consolidation in the beef, pork and poultry packaging industries, dairy production, dairy processing and seed market segments.3 Panelists and public participants also raised issues regarding buyer power and price discrimination in the retail market segment, rising farm input prices, and mislabelling issues. Both AAG Kanter and Chairman Khan expressed their appreciation for the issues raised during the session and urged their respective agencies to review them with a particular eye on mergers and acquisitions that could lead to further market concentration.

The concerns raised in this session, and the agencies’ responses to those concerns, are consistent with the Biden administration’s renewed emphasis on antitrust in the agricultural sector. Following campaign promises, on July 9, 2021, President Biden released his Executive Order on Promoting Competition in the American Economy, which outlined a number of actions and initiatives to combat competition in the US economy. agricultural industry.4 On January 3, 2022, President Biden expanded his executive order by providing additional context and support on how antitrust laws could help reinvigorate the industry. The president highlighted four key points that he said would “create fairer markets and more opportunity for family farmers and ranchers and drive down prices at grocery stores,” tackling concentration in the segments of the agricultural market as well as the problems linked to the false labeling of agriculture and food products. The executive order, the January 2022 announcement, and this listening forum all strongly suggest that antitrust agencies are actively working toward increased enforcement in the industry in addition to addressing some of these concerns through potential line reforms. guidelines on horizontal mergers.

Businesses in the agriculture and food sectors should also heed these important signals from the administration and ensure that their respective antitrust compliance programs, including internal audits, are up to date. Additionally, perhaps now more than ever, it is important to seek prompt antitrust advice on competitive and strategic acquisitions within the industry.

The DOJ and FTC listening forums continue with healthcare, which was held on April 14, 2022, media and entertainment, which was held on April 27, 2022, and the latest on the technology to be held on May 12, 2022.

1 “Forums to Focus on Markets Commonly Affected by Mergers: Food and Agriculture, Healthcare, Media and Entertainment, and Technology,” March 17, 2022, available at: https://www.ftc.gov/news-events /news/ press-releases/2022/03/ftc-justice-department-launch-listening-forums-firsthand-effects-mergers-acquisitions

2 Full forum transcript available at: https://www.ftc.gov/system/files/ftc_gov/pdf/FTC-DOJ%20Merger%20Guidelines%20Listening%20Forum_FTC_March%2028%202022.pdf

3 “Public Workshops: Agriculture and Antitrust Enforcement Issues in Our 21st Century Economy,” available at: https://www.justice.gov/atr/events/public-workshops-agriculture-and-antitrust-enforcement- issues-our-21st -economy-century-10

4 Exec. Order No. 14036 86 FR 36987, available at: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american -economy/

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